Recent remarks made by former United Nations Secretary-General Kofi Annan, advising Kenyans not to vote for presidential candidates who face trial at the International Criminal Court have caused a storm, as the two politicians concerned prepare to announce who their coalition will nominate to stand.

Referring to the presidential election scheduled for March 4 next year, Annan said Kenya’s next head of state must be trusted by the international community and should be able to travel freely to meet other leaders.

“There must be confidence and trust by other nations and the international community. When you elect a leader who cannot do that, who will not be free and who will not be easily received, it is not in the interest of the country concerned, and the population, I’m sure, should understand that," Annan told the BBC during a visit to Kenya on December 4.

It was a clear suggestion that two leading contenders, Deputy Prime Minister Uhuru Kenyatta and member of parliament William Ruto, might be unsuitable choices as president. This was the second time Annan had made such remarks.

Ruto and Kenyatta are due to go on trial at the International Criminal Court, ICC, in The Hague in mid-April 2013, just a day after the date set for a run-off election, if the first round does not produce an outright winner.

They are among four men charged with orchestrating the violence that unfolded in the aftermath of Kenya’s last general election in 2007. More than 1,100 people were killed when the disputed result erupted into ethnic conflict, most acutely in parts of the capital, Nairobi and in the Rift Valley.

At the time, Kenyatta and Ruto were on opposite sides of the political divide, but for the forthcoming election they have forged an alliance between their respective parties, The National Alliance, TNA, and the United Republican Party, URP.

Annan heads an international committee called the Panel of Eminent African Personalities, which the African Union appointed to mediate between the Party of National Unity and Orange Democratic Movement when both claimed victory in the 2007 presidential election. The panel was instrumental in building a coalition agreement to end the violence in early 2008, and has continued to play a role in efforts to combat impunity and build national cohesion since then.

Kenyatta, Ruto and their supporters were angered by Annan’s remarks, and called on the international community not to interfere in the 2013 election.

“Even suspects have their own rights in their own nations,” Kenyatta said at a December 3 ceremony to seal his TNA party’s coalition with Ruto’s URP. “From the time we were mentioned, we said we are determined to follow the due process to clear our names, but this does not mean we should be denied our rights.”

Jennifer Shamalla, founder of the National Conservative Forum lobby group and a strong opponent of the ICC, said Annan was speaking for the western powers that were meddling in the election process.

“These people [Uhuru and Ruto] are still suspects. No formal court has found them guilty. We do not want tensions raised by statements like Annan’s,” she said. “If they tell us it is not in our interest to vote for these people, they should go ahead and tell us the consequences that await us for electing them. They should spell out these consequences clearly, because the vagueness raises some tension.”

Mwandawiro Mghanga, head of another party, the Social Democrats, described Annan’s remarks as intimidation and an attempt to undermine people’s right to choose their own representatives.

“The truth of the matter during this electioneering period is that it is only fair that Annan and some imperialist regimes keep off. They are adding no value,” he said.

The ICC suspects have accused the European Union and United States of backing certain presidential candidates, in particular Prime Minister Raila Odinga.

Ndung’u Wainaina, executive director of the International Centre for Policy and Conflict, disputes this, arguing that the international community’s financial and logistical support for the election is crucial. He welcomed international assistance for enforcing national laws and the 2010 constitution, particularly during this election period.

“Is that what you call interference?” Ndung’u asked. “These people who are talking about foreign interference simply do not believe in the enforcement of the rule of law. The claims are so hollow and are simply being used to whip up emotions for no reason.”

Annan’s warning was welcomed by some analysts and by representatives of victims groups in Kenya.

“We would want more people like Annan to speak for us because we want the truth,” said Rose, a resident of the western town of Kisumu whose sister was shot by police during the 2007-08 violence. “Annan is right, and as a victim’s family, I support his call that Kenyans must be careful not to vote in suspects.”

Ken Wafula, director of the Centre for Human Rights and Democracy, based in Eldoret in the Rift Valley, said Annan had raised an issue that was central to the election debate, but which had been simply brushed aside by the two candidates and their supporters.

In Kenya, there is heated debate about the ICC, its role in delivering justice for the crimes of the 2007-08 period, and whether this aim would be better served by national or regional judicial mechanisms.

Even Ruto and Uhuru’s main rival for the presidency, Prime Minister Odinga, has tried to appeal to anti-ICC sentiment. He announced last week that if elected president, he would seek to have The Hague cases brought back to Kenya.

Wafula argues that instead of being encouraged to accept the ICC’s legitimacy and understand the charges it has brought, many Kenyans have been persuaded that the court is a colonialist institution deployed to persecute their leaders.

“In every respect, the debate we have had so far is only meant to whip up ethnic emotions,” Wafula said. “And those who seek to initiate meaningful public discussions are labelled puppets of foreign governments and sell-outs to instil fear in them.”

Big questions remain about the practical implications of electing a president who faces trial in The Hague.

Wafula said Kenyans should heed Annan and his committee. “We do not want to jeopardise our diplomatic and economic relations just because of two people,” he said.

“We could end up with a pariah president who cannot travel to certain places to engage his counterparts on development issues or negotiate trade deals that are beneficial to the growth of the country,” he said. “This will have a massive impact on our economy as well as our global standing.”

If the head of state was attending his trial at the ICC, it would have a significant impact on the day-to-day running of the country. Certain functions of the president, including nominating and appointing judges, cabinet secretaries and other state officials, have to be carried out in-person.

The head of the East African Law Society, Aggrey Mwamu, said that made it impossible for someone to run the country from The Hague.

“This will create a constitutional crisis,” he said. “For instance, if there are vacancies in the Supreme Court to the effect that it cannot form a quorum, and the president is at The Hague; in effect the court would be incapacitated.”

Walter Menya is a reporter for ReportingKenya.net and The Star newspaper in Nairobi. This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with The Star.

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